Ex Parte Egan et al

Patent Trial and Appeal Board

Aug 1, 2016

13585937 (P.T.A.B. Aug. 1, 2016)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/585,937 08/15/2012 William F. EGAN COC.P0534C 8272
23575 7590 08/01/2016
CURATOLO SIDOTI CO., LPA
24500 CENTER RIDGE ROAD, SUITE 280
CLEVELAND, OH 44145
EXAMINER
STEELE, JENNIFER A
ART UNIT PAPER NUMBER
1789
MAIL DATE DELIVERY MODE
08/01/2016 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MIKI MORIYAMA and KOICHI GOSHONOO1
____________

Appeal 2015-001196
Application 13/585,937
Technology Center 1700
____________
Before BRADLEY R. GARRIS, CATHERINE Q. TIMM, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1–24. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
Appellants claim a building wall comprising a stucco matrix applied
to a woven (e.g., a leno weave as recited in dependent claim 7) lath of non-
metallic warp (12) and weft (10a, 10b) yarns wherein at least a portion of the

1 Construction Research & Technology GmbH is identified as the real party
in interest. App. Br. 3.
Appeal 2015-001196
Application 13/585,937
2
warp yarns have a torque effect on at least a portion of the weft yarns and
wherein at least a portion of the weft yarns are undulated when viewed in the
plane of the lath (independent claim 1, Figs. 1 and 3; see also independent
claim 16).
A copy of representative claim 1, taken from the Claims Appendix of
the Appeal Brief, appears below.
1. A building wall comprising:
a building wall substrate;
a corrosion-resistant woven lath attached to said substrate, said lath
comprising warp and weft yarns comprising non-metallic fibers, wherein at
least a portion of said warp yarns have a torque effect on at least a portion of
said weft yarns and wherein at least a portion of said weft yarns are
undulated when viewed in the plane of the lath; and
a stucco matrix applied to said lath.

Under 35 U.S.C. § 103(a), the Examiner rejects as unpatentable:
(1) claims 1, 3–12, 15, 16, and 18–23 over Waggoner et al. (US
6,355,333 B1, issued Mar. 13, 2002) (“Waggoner”) in view of Porter et al.
(US 7,354,876 B2, issued Apr. 8, 2008) (“Porter”) and as evidenced by
Inaba et al. (US 5,110,656, issued May 5, 1992) (“Inaba”);
(2) claims 2 and 17 over Waggoner, Porter, Inaba, and as evidenced
by the Textile Glossary definition of Leno Weave (Leno Weave, Textile
Glossary, Celanese Acetate (2001));
(3) claims 13 and 24 over Waggoner, Porter, Inaba, and further in
view of Stevenson et al. (US 5,965,467, issued Oct. 12, 1999)
(“Stevenson”); and
(4) claim 14 over Waggoner, Porter, as evidenced by and in view of
Inaba.
Appeal 2015-001196
Application 13/585,937
3
Appellants argue independent claims 1 and 16 together (see, e.g.,
App. Br. 11). We select claim 1 is representative of the independent claims.
Appellants also present arguments specifically directed to certain dependent
claim limitations which will be addressed as necessary in the following
opinion.
We will sustain the above rejections for the reasons given in the Final
Action, the Answer, and below.
The Examiner finds that Waggoner discloses a building wall
comprising a stucco matrix applied to a fiberglass mesh or metal lath but not
a woven lath of warp and weft yarns having the torque and undulated
characteristics of claim 1 (Final Action 2–3). The Examiner additionally
finds that Porter discloses woven non-metallic fabrics for stucco application
including a leno weave fabric that inherently would possess the claimed
torque and undulated characteristics as evidenced by Figures 2a and 2b of
Inaba (id. at 3–6). In light of these findings, the Examiner concludes that it
would have been obvious to use the leno weave fabric of Porter as the lath of
Waggoner thereby resulting in warp yarns having a torque effect on weft
yarns and in the weft yarns being undulated as claimed (id. at 5–6).
Appellants argue that Porter contains no teaching or suggestion of the
torque and undulated features recited in claim 1 (App. Br. 11), that Porter
teaches away from undulated weft yarns by describing the fabric as having a
planar structure (id. at 14–15), and that no evidence supports the Examiner’s
position that the fabric of Porter inherently possesses undulated weft yarns
(id. at 17).
Appellants’ arguments are contradicted by the evidence of record. As
correctly pointed out by the Examiner, Figures 1 and 2 of Porter show
undulated weft (as well as warp) yarns (Ans. 6). Moreover, Appellants do
Appeal 2015-001196
Application 13/585,937
4
not explain why the Examiner errs in considering Figures 2a and 2b of Inaba
to evince that Porter’s leno weave fabric inherently possesses the claimed
torque and undulated features. A preponderance of the evidence of record
supports the Examiner’s finding that these features are possessed inherently
by the leno weave fabric of Porter.
Regarding dependent claims 11 and 22, Appellants argue that “FIG 2b
[of Inaba] shows the weft yarns bent at very sharp angles” (App. Br. 20) and
that “[t]his construction is not equivalent to a sinusoidal pattern of yarns as
claimed” (id.).
Appellants’ argument lacks convincing merit. Claims 11 and 22
recite “a substantially sinusoidal pattern” (emphasis added). Appellants fail
to even assert that, much less explain why, the pattern of the weft yarns
shown in Inaba’s Figure 2b is not substantially sinusoidal.
Appellants do not present additional separate arguments specifically
directed to the other dependent claims in rejection (1). Accordingly, for the
reasons stated above and given by the Examiner, we sustain rejection (1) of
claims 1, 3–12, 16, and 18–23.
Appellants’ arguments in the Appeal Brief concerning rejection (2) of
claims 2 and 17 and rejection (4) of claim 14 do not specifically address the
limitations of these dependent claims and are merely reiterations of
arguments directed to independent claims 1 and 16 (id. at 21–22, 25–27).
Therefore, we also sustain rejections (2) and (4).2

2 In the Reply Brief, Appellants argue for the first time in this appeal that the
specific subject matter defined by claim 14 would not have been obvious
(Reply Br. 9). This new argument could have been but was not presented in
the Appeal Brief. For this reason and because Appellants have not shown
Appeal 2015-001196
Application 13/585,937
5
In rejecting claims 13 and 24, the Examiner finds that Stevenson
discloses an embodiment of reinforcing woven mesh fabric having a leno
weave with more warp yarns than weft yarns and concludes that, in view of
Stevenson, it would have been obvious “to employ a woven structure [as the
lath of Waggoner] with a combined weight of warp yarns greater than weft
yarns [as claimed]” (Final Action 13).
Appellants argue that “[t]he Office Action assumes that the warp and
weft yarns [in Stevenson’s embodiment] are the same type of yarns and
therefore would have the same weight” (App. Br. 24) and that “the warp
yarn may be of a different type of yarn from the weft yarn” (id.).
Appellants’ argument does not persuade us that the Examiner erred in
rejecting claims 13 and 24. The issue presented by this rejection is not
limited to whether the embodiment of a leno weave having more warp than
weft yarns is expressly taught by Stevenson to be comprised of warp and
weft yarns of the same type. See In re Keller, 642 F.2d 413, 425 (CCPA
1981) (“The test for obviousness is not whether the features of the secondary
reference may be bodily Incorporated into the structure of the primary
reference; nor is it that the claimed invention must be expressly suggested in
any one or all of the references.”). Rather, the pivotal issue is what
Stevenson would have suggested to one having ordinary skill in this art. A
preponderance of the evidence supports the Examiner’s determination that
Stevenson would have suggested a leno weave having more warp than weft
yarns regardless of whether the yarns are the same or different. In the
context where the warp and weft yarns are the same and therefore have the

good cause for belatedly presenting it, we will not consider the new
argument regarding claim 14. See 37 C.F.R. 41.41(b)(2) (2013).
Appeal 2015-001196
Application 13/585,937
6
same weight, this suggestion supports the Examiner’s conclusion that it
would have been obvious to provide Waggoner with a leno weave having
more warp than weft yarns whereby the warp yarns would have a combined
weight greater than the combined weight of the weft yarns as required by
claims 13 and 24.
We sustain, therefore, rejection (3) of claims 13 and 24.
The decision of the Examiner is affirmed.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED